Some Very detailed I-751 Questions...maybe you can help please.

[Trymester3 6]

3 hours ago, Chardon Ne' said:

Hi what you can do is find out if your divorce is final, even though you have yet to receive the decree. I know that the day I received mine and the date that it was actually final are different. It was actually finalized months before I received the actual decree. 

I appreciate your reply Chardon Ne', Are you referring to Part 1, Question 13?

[Chardon Ne' 71]

I was saying before you even file. Not physically having it in your hands, does not necessarily mean that it is not final. By the way you are speaking I am under the impression that you already had your day in court and you are just waiting for them to send you the decree. If you know whether or not your divorce is final today it may help you make a better decision. If she applies now with the waiver, they will RFE her for the divorce decree, Im not sure how that may play in the event that she has a deadline to submit it. 

 

If you are still married at the time she files there is no waiver eligibility regardless if you are separated or not. Maybe this can help.

 

https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/i-751_Filed_ Prior_Termination_3apr09.pdf

[Chardon Ne' 71]

2 A CPR who is separated  from the petitioning spouse, or has initiated divorce or annulment  proceedings with the petitioning spouse, may only file a waiver of the joint filing requirement if he or she can establish that removal from the United States would result in extreme hardship or that the CPR entered the marriage in good faith, but the petitioning spouse or parent battered/ abused the CPR spouse or child.  In such instances, the waiver would be based on the hardship or battery, not on the separation or the divorce or annulment  proceedings.

3  If the CPR marked Part 2 Box A for a joint filing, but the petitioning spouse did not sign the form, the adjudicator

should follow current operating procedures to obtain the spouse's  signature.   If the CPR does not respond to the signature request, the adjudicator  should deny the case for abandonment.   If the CPR responds to the request but

 

1-751 Filed Prior to Termination of Marriage

[Trymester3 6]

We had no "day in court" because it was an uncontested divorce and there were no lawyers involved. It seems like it will be a pretty simple process where none of us may even need to go to court,

 

I was told on this site that she can file with the divorce waiver even though she doesn't have the divorce decree yet, and then just send in the decree proof months later when she receives an RFE. It seems that you are telling me something different. I will definitely read the link and info. you provided though and make a decision on how I can best help her with her I-751 package.

 

We can NOT file jointly. I don't want to file jointly, provide evidence of us being happily married, and then it turns out that we are separated and in the middle of a divorce. It's too weird and sketchy.

 

Thank you for all your help thus far.

 

[Villanelle 4,121]

I am going to disagree with others on this thread...

From my understanding (and Ive reviewed previous topics and no ones ever posted back to say OMG what the heck did ya'll tell me, it was so wrong.. so Im going to assume there was no issues but I cant be sure)

 

Anyway- there have been some comments about things having to be filled out "properly" with properly meaning things accurate and true. Normally this is correct for immigration paperwork- however this is a special situation. Technically you are filling out a divorce waiver 751 when you are not divorced. So there in itself makes the form "improper" so to speak. The "regular" rules do not apply here in a sense because you are intentionally filling in the form wrongly. 

 

There is nothing wrong with doing this. It is how it is done. There is no waiver available to people who are separated or have a divorce pending (no check box no nothing). Your choices for the form are either legally married and file joint or legally finalized divorced and file under waiver. People in the not quite divorced scenario that dont fit in to either usually select filing as divorced (even though its not true) and its USCISs policy to accept the form fully knowing its not true and allow you to submit proof making it true later. (the divorce decree). 

 

If you do not do the above then you either need to file jointly with your spouse or not file at all until you get your decree which can place you out of status and no one should do that. 

 

So with that in mind:

Part 1, 1A: Does she write the name that is on her green card, or does she write the name that she will have after her divorce decree arrives?
 

There is nothing wrong with using the name you want to appear on the NEW GC on the form. People have done it and it has been fine. I have not seen a posting where someone filled out a waiver ROC with a maiden name and it was rejected because they didnt have the divorce yet. Technically the petition is not going to be approved w/o the divorce decree, but it can be accepted with the maiden name and be pending approval of the decree to support the name change. If you use the old  married name then at some point you would have to advise them of the new maiden name you want or else you will get the card in the old married name and have to pay to get a card in the maiden name. This is costly and will take about 8 months to get once you ask for it.

Part 1, 10: She should mark "divorced" even though we are still technically married because the divorce decree hasn't been granted yet. She will have to provide the Decree later after an RFE is sent.

 

YES. She is claiming divorce as her basis. She just doesnt have proof of it yet.  

Part 1, 13: Should the date provided be the date that we stopped living together, or the actual date on the divorce decree? If the decree is not in our possession yet, should she leave the space blank?
 
Blank as you do not have a date of divorce yet.

Part 1, 16 and 17: If the Petitioner is moving around and staying in different friend's homes until she finds something more permanent, should she just check the box that says "no"
 

Mailing address is where you want to get your mail delivered. This should be a stable address where mail can be delivered to her name (in care of if needed). If this address is no good it will delay the case. It can be a PO Box. You are also required to provide USCIS with your actual physical address. This is where you are actually physically located and living. This determines your local office. If you move physically from location to location even in short periods of time you are technically suppose to notify them. USCIS is suppose to be able to know the exact physical location of every LPR in the US at all times. Now not everyone does this. Lots of people move and do not notify them. This doesnt make it right. When or if you do go for an interview they expect you to have ID that matches the physical address they have on file for you as well as be in the correct location based on said address.

Part 1, 22: Can she just check the box that says "no" since her name has never been on any lease, and we always used my mother's address as our address on all official forms and IDs anyway?

 

Again, this is a question about physical location address vs mailing address. If youve only ever used one address on things then you can simply write that one address. However if in an interview you start going on about how you lived here and there together-- well...they are going to question it.
 
Part 4: I qualify as "former spouse" because that is what I am, and I have publicly stated that I will help her submit her ROC package. Does she have to fill this section out (i.e. put a check mark on 1a), or can she leave it blank. What difference does it make?

 

Why wouldnt you fill this section out? And yes you would check off former spouse. 
 
Part 8: If I am not acknowledged at all in Part 4, then I don't need to fill out Part 8. However, "if" I am acknowledged in Part 4, then I "have" to fill out and sign Part 8. Correct? Is this correct even though we are not filing jointly and she is actually filing with a divorce waiver? Do they need my info. and signature anyway just because we had an uncontested and friendly split?

 

right above part 8 it states if you are filing ALONE then no one signs part 8. 

 

 

 

[NikLR 13,220]

I actually agree with Damara on this issue.  I didn't think it sounds right that she should be filing as married when she is really filing as divorced, just without the decree in hand.  They should make this form a little more friendly for people who are separated but divorces are not yet finalized. 

[Trymester3 6]

Damara, I really appreciate your detailed response (like I appreciate you took all that time). I'm a little confused still about Part 8. I didn't see where it says that no one has to sign it if she is the only one filing. Also, even though I don't have to sign it, does the rest of my info. have to go in Part 8. I'm assuming not. Since she's filing by herself with a divorce waiver, I won't have to put my phone, email, or check the box that says "I can read and understand English", right?

 

*Also, as far as whether she applies with her current married name, or maiden name, I'm still not sure what to advise her. From when I filed the divorce paperwork, it did include a sentence that pretty much indicated she can just automatically go back to her maiden name without having to fill out an additional name change form. In this sense, later when she is RFE'd , providing the Divorce Decree will also prove that she is now eligible to use her maiden name as her official name on her Green Card, right? I fear using a name different than the one on her current Green Card may slow down the whole ROC process for her though, no?

[Chardon Ne' 71]

On 1/7/2017 at 5:10 PM, Trymester3 said:

Damara, I really appreciate your detailed response (like I appreciate you took all that time). I'm a little confused still about Part 8. I didn't see where it says that no one has to sign it if she is the only one filing. Also, even though I don't have to sign it, does the rest of my info. have to go in Part 8. I'm assuming not. Since she's filing by herself with a divorce waiver, I won't have to put my phone, email, or check the box that says "I can read and understand English", right?

 

*Also, as far as whether she applies with her current married name, or maiden name, I'm still not sure what to advise her. From when I filed the divorce paperwork, it did include a sentence that pretty much indicated she can just automatically go back to her maiden name without having to fill out an additional name change form. In this sense, later when she is RFE'd , providing the Divorce Decree will also prove that she is now eligible to use her maiden name as her official name on her Green Card, right? I fear using a name different than the one on her current Green Card may slow down the whole ROC process for her though, no?

She can file with the name she wants on her green card however she will need the decree because  the divorce decree can also be used as a legal name change document.  If she files as divorced with a waiver,  she will get an RFE for the decree and will have 87 days to respond.   Do you think you will have the decree in your hands within that time period? That is what you what I would consider before filing. This should help it lays out exactly what she should do in this case.

 

 

 https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/i-751_Filed_ Prior_Termination_3apr09.pdf

Edited January 9, 2017 by Chardon Ne'

[Chardon Ne' 71]

On 1/6/2017 at 11:01 PM, Damara said:

I am going to disagree with others on this thread...

From my understanding (and Ive reviewed previous topics and no ones ever posted back to say OMG what the heck did ya'll tell me, it was so wrong.. so Im going to assume there was no issues but I cant be sure)

 

Anyway- there have been some comments about things having to be filled out "properly" with properly meaning things accurate and true. Normally this is correct for immigration paperwork- however this is a special situation. Technically you are filling out a divorce waiver 751 when you are not divorced. So there in itself makes the form "improper" so to speak. The "regular" rules do not apply here in a sense because you are intentionally filling in the form wrongly. 

 

There is nothing wrong with doing this. It is how it is done. There is no waiver available to people who are separated or have a divorce pending (no check box no nothing). Your choices for the form are either legally married and file joint or legally finalized divorced and file under waiver. People in the not quite divorced scenario that dont fit in to either usually select filing as divorced (even though its not true) and its USCISs policy to accept the form fully knowing its not true and allow you to submit proof making it true later. (the divorce decree). 

 

If you do not do the above then you either need to file jointly with your spouse or not file at all until you get your decree which can place you out of status and no one should do that. 

 

So with that in mind:

Part 1, 1A: Does she write the name that is on her green card, or does she write the name that she will have after her divorce decree arrives?
 

There is nothing wrong with using the name you want to appear on the NEW GC on the form. People have done it and it has been fine. I have not seen a posting where someone filled out a waiver ROC with a maiden name and it was rejected because they didnt have the divorce yet. Technically the petition is not going to be approved w/o the divorce decree, but it can be accepted with the maiden name and be pending approval of the decree to support the name change. If you use the old  married name then at some point you would have to advise them of the new maiden name you want or else you will get the card in the old married name and have to pay to get a card in the maiden name. This is costly and will take about 8 months to get once you ask for it.

Part 1, 10: She should mark "divorced" even though we are still technically married because the divorce decree hasn't been granted yet. She will have to provide the Decree later after an RFE is sent.

 

YES. She is claiming divorce as her basis. She just doesnt have proof of it yet.  

Part 1, 13: Should the date provided be the date that we stopped living together, or the actual date on the divorce decree? If the decree is not in our possession yet, should she leave the space blank?
 
Blank as you do not have a date of divorce yet.

Part 1, 16 and 17: If the Petitioner is moving around and staying in different friend's homes until she finds something more permanent, should she just check the box that says "no"
 

Mailing address is where you want to get your mail delivered. This should be a stable address where mail can be delivered to her name (in care of if needed). If this address is no good it will delay the case. It can be a PO Box. You are also required to provide USCIS with your actual physical address. This is where you are actually physically located and living. This determines your local office. If you move physically from location to location even in short periods of time you are technically suppose to notify them. USCIS is suppose to be able to know the exact physical location of every LPR in the US at all times. Now not everyone does this. Lots of people move and do not notify them. This doesnt make it right. When or if you do go for an interview they expect you to have ID that matches the physical address they have on file for you as well as be in the correct location based on said address.

Part 1, 22: Can she just check the box that says "no" since her name has never been on any lease, and we always used my mother's address as our address on all official forms and IDs anyway?

 

Again, this is a question about physical location address vs mailing address. If youve only ever used one address on things then you can simply write that one address. However if in an interview you start going on about how you lived here and there together-- well...they are going to question it.
 
Part 4: I qualify as "former spouse" because that is what I am, and I have publicly stated that I will help her submit her ROC package. Does she have to fill this section out (i.e. put a check mark on 1a), or can she leave it blank. What difference does it make?

 

Why wouldnt you fill this section out? And yes you would check off former spouse. 
 
Part 8: If I am not acknowledged at all in Part 4, then I don't need to fill out Part 8. However, "if" I am acknowledged in Part 4, then I "have" to fill out and sign Part 8. Correct? Is this correct even though we are not filing jointly and she is actually filing with a divorce waiver? Do they need my info. and signature anyway just because we had an uncontested and friendly split?

 

right above part 8 it states if you are filing ALONE then no one signs part 8. 

 

 

 

 I was just relaying this info. It spells out clearly how she should proceed.  https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/i-751_Filed_ Prior_Termination_3apr09.pdf

[Villanelle 4,121]

On the form right above section 8 there is wording that says something like "note: blah blah". That if you are filing based on cruelty or INDIVIDUAL filing then you do not do section 8. A divorce wavier is individual filing.

The doc linked above is the official source of the policy info that shows USCIS accepts divorce waiver petitions from those who are not technically divorced- ie allows them to use the form in an improper fashion so to speak. It explains how they accept it and then request the decree to then make the form legit and acceptable to be processed.

 

So as stated above you can use the maiden name because the decree will also be used as proof for the name change. It will not slow the process down any longer time wise because it is ONE document (the decree) that two items (name and eligibility for divorce waiver) depend on.  I have never seen anyone send in a ROC packet with a pending divorce and get stopped for the name change issue in 'round one' right at the gate. It will be accepted and processed at the basic level (fee and all spaces filled out and signed) and when an adjudicator actually looks at the packet and sees its missing the one document needed the rfe will be sent. 

 

If you do not have the decree in time to respond to the RFE then USCIS will have to technically administratively deny her ROC and send her to immigration court where she can present it. In a situation like that even though its considered denied she is not out of status and can continue to work and all that. She would just have the hassle of court to resolve it. If it goes that route many people then get an attny to navigate the court system because while you can DIY yourself the court system is complex with specific things that need to be done at certain times and ways to contact them and all. There is little to no info about how to navigate it online, plus its very specific to the individual- so no one here is going to be of much help to you. 

[Trymester3 6]

Thank you very much for your detailed replies again both of you, but especially Damara since that one makes me feel more confident and what we are trying to do.

 

Random side question: do you know if the fee that will be nearly $695 can be paid with one money order, or should it be one money order for the Biometrics and another money order for the rest of it?

[NikLR 13,220]

Both fees can be included on one money order or check.